Dismissed

Sri Zamrud Pasha v. Chief Secretary

Karnataka HC25 Mar 2022WP/37162/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka examined a Writ Petition filed by a petitioner-plaintiff challenging the rejection of an application for temporary injunction in a suit for permanent injunction. The petitioner claimed possession of property via a grant from a Mandal Panchayat and a Hakku Patra. The Court dismissed the writ petition, finding no prima facie case as the grant order was missing and the Hak

What the court decided

AI extract

Sri Zamrud Pasha Vs Chief Secretary — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF MARCH, 2022

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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WRIT PETITION No.37162 OF 2017 (GM-CPC)

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BETWEEN:

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Sri. Zamrud Pasha, Son of late Pakeer Ahammed, Aged about 55 years, Residing at No.105/A, Shivappa Layout, Periyapatna Town, Periyapatna Taluk, Mysore District. 571 107.

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.. Petitioner

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(By Sri.P.M. Gopi, for Sri.Siddamallappa P.M., Advocate)

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AND:

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Chief Secretary, Government of Karnataka, Vidhana Soudha, Bangalore – 560 001.

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The Deputy Commissioner Mysore, Mysore District – 571 107.

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The Assistant Commissioner, Hunsur Sub-Division, Hunsur – 571 105.

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The Panchayath Development Officer, Panchavalli Grama Panchayath

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Kasaba Hobli, Periyapatna Taluk, Mysore District – 571 107.

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The Chief officer, Town Municipality Periyapatna Town – 571 107.

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.. Respondents

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(By Sri. Ramesh Jois, Addl. Govt. Advocate for R-1 to R-3; Sri. Rohith Gowda, Advocate for R-5 ; Notice to R-4 held sufficient v/o. dt.17-02-2022)

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This Writ Petition is filed under Article 227 of the Constitution of India, praying to issue a writ of certiorari, quashing the impugned order dated 13-03-2017 passed in O.S.No.382/2016 on the file of Civil Judge, Periyapatna, rejecting the application on I.A.No.1 filed by the plaintiff under Order 39 Rule 1 and 2 read with Section 151 of the CPC as per Annexure E and impugned order dated 19-07-2017 passed in M.A.No.5/2017 on the file of Senior Civil Judge & JMFC at Periyapatna, by dismissing the appeal with costs, as per Annexure F; etc.

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This Writ Petition coming on for Preliminary Hearing in ‘B’ Group, through Physical Hearing/Video Conferencing Hearing, this day, the Court made the following:

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O R D E R

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The present petitioner as a plaintiff has instituted a suit against the present respondents arraigning them as

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W.P.No.37162/2017

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defendants Nos.1 to 5, in the Court of the learned Civil Judge and Judicial Magistrate First Class at Periyapatna (hereinafter for brevity referred to as “the Trial Court”) in O.S.No.382/2016, for the relief of permanent injunction, restraining the defendants from interfering in his alleged possession of the suit schedule property.

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The said suit schedule property is said to be a piece of immovable property measuring 37 ft.x30 ft. in Sy.No.97 of Abburu village, Kasaba Hobli, Periyapatna Taluk, within the limits of the Trial Court.

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According to the plaintiff, the said property was granted in his favour by the Mandal Panchayat, Panchavalli, Periyapttana Taluk, as per the Government Order No.DPC/15/DRH dated 13-05-1972 with respect to which, subsequently, on 05-06-1989, a Hakku Patra (Certificate of Right) was also given to him. He further claims that he got

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the revenue records in the Grama Panchayat made in his name and has been paying necessary taxes upon the said property. However, of-late, the respondents in the guise of

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allotting some portion of the property in Survey No.97, in which the petitioner’s property is located, for the purpose of construction of a community Hall by name Babu Jagajeevana Ram Community Building, Periyapatna, are interfering in his possession of the suit property.

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The plaintiff also filed I.A.No.1/2016, under Order XLIII, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as “the CPC”) in the Trial Court, seeking the relief of temporary injunction. The defendants No.1 to 3 appeared in the Trial Court and filed their Statement of Objections to the said I.A.No.1/2016, taking a contention that, at no point of time, the alleged Mandal Panchayath of Panchavalli Grama Panchayat had any land in its name or possession to carve out any Layout with sites in it and to allot to anyone, much less to the petitioner herein. They further contended that, the plaintiff, by misusing the name of the previously existing Mandal Panchayath, has created certain fake documents in his name and is pretending that

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the suit property was granted and delivered to him by the said Mandal Panchayath. Further, defendants No.1 to 3 specifically stated that, there is no order by the Government, conveying or authorising the said Grama Panchayath or Mandal Panchayath for formation of any Layout or for allotment of any sites in favour of any one, on the other hand, the said property bearing Survey No.97 is being used by the State Government for various other purposes like building the Travellers’ Bunglow, Office of the Tahasildar, Office of the Sub-Registrar, Stree Shakti Bhavana and few other Government Departmental offices. Thus, they contended that the alleged grant and handing over of the possession of the site by the alleged Mandal Panchayath, Panchavalli to the petitioner (plaintiff), is totally a false contention.

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The Trial Court, after hearing both side, passed a detailed order in that regard and ultimately rejected the interlocutory application – I.A.No.1/2016 filed by the plaintiff. Consequently, it vacated the status-quo order

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granted by it earlier. Aggrieved by the same, the plaintiff preferred an appeal under Order XLIII, Rule 1 of the CPC, in the Court of the learned Senior Civil Judge and Judicial Magistrate First Class, Periyaptna, Mysuru (hereinafter for brevity referred to as “the first appellate Court”) in Misc. Appeal No.5/2007, which Court also, by its reasoned order dated 19-07-2017, dismissed the said appeal with costs and confirmed the order dated 13-03-2017 passed by the Trial Court, rejecting the I.A.No.1/2016 filed by the plaintiff. Challenging the same, the plaintiff in the Trial Court has filed this petition as a petitioner.

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Learned counsel for the petitioner, in his argument, reiterated the contentions taken up by the plaintiff in his plaint in the Trial Court and contended that the plaintiff, being a bona fide grantee and owner of the suit schedule property having been in real and actual possession of the property should not have been denied the relief of temporary injunction, when he has made out a prima facie case in his favour.

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Learned counsel also submitted that the plaintiff has produced the necessary documents like the Hakku Patra (Certificate of Right), Deputy Commissioner’s order, addressed to the President, Grama Panchayath, Panchavalli, Periyapatna Taluk, with regard to requisition made by Nayaka community for grant of 18 guntas of land for the construction of Nayaka Sangha Samudaya Bhavana, the resolution dated 16-02-1989 passed by the Mandal Panchayath, Panchavalli, and the list of beneficiaries wherein the plaintiff is also one of the beneficiaries, as such, the Trial Court was not justified in rejecting the prayer of the plaintiff for temporary injunction.

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Per contra, learned Additional Government Advocate for respondents No.1 to 3 and learned counsel for Respondent No.5, in their argument submitted that, mere production of a document which is alleged to be a Hakku Patra (Certificate of Right) would not by itself show the prima facie possession of the suit schedule property by the plaintiff, when in fact, the alleged grantor of said Hakku

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Patra i.e. the Mandal Panchayath, Panchavalli, itself had, at no point of time, any right or authority to either issue that Hakku Patra (Certificate of Right) nor was authorised to form any Layout and to allot any site to any beneficiary including the plaintiff. They further contended that, through out, it is the case of all the contesting defendants in the Trial Court as well before this Court that, the alleged document upon which the plaintiff is relying upon is a created document, which does not have any sanctity in the eye of law. As such, when the plaintiff, based upon an alleged created document claims to have got the khata made in his name and said to have paid the taxes upon it, it does not vest with him any right, title or interest to squat on the said property. As such, both the Trial Court as well the first appellate Court have rightly rejected the application filed by the plaintiff under Order XXXIX, Rules 1 and 2 of the CPC.

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A careful perusal of the Memorandum of writ petition along with its Annexures produced by the petitioner

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(plaintiff) would go to show that, even according to the petitioner, his alleged right over the suit schedule property is based upon an alleged grant said to have been made in his favour by the Mandal Panchayath, Panchavalli, Periyapatna Taluk on 13-05-1972 and subsequent to it, a Hakku Patra (Certificate of Right) is also said to have been given to him by the same Panchayath on 05-06-1989. Admittedly, the alleged grant order dated 13-05-1972 has not been produced by the plaintiff (petitioner herein) either in the Trial Court or the appellate Court or in this writ petition. Though he has produced the alleged Hakku Patra as Document No.1 in the Trial Court, but the very genuinity, authenticity and correctness of the said document is challenged and disputed by none else than the defendants No.1 to 3 (respondents No.1 to 3 herein), who are supposed to be the primary authorities with whose knowledge and consent alone, the said Document at No.1 ought to have been come out from any lower authorities or bodies including Mandal Panchayat, Panchavalli. For the reasons

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unknown to this Court, the said Mandal Panchayath is not appearing in this matter even though it is a party in this writ petition.

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The other documents, particularly, the letter said to have been issued by the Deputy Commissioner, Mysuru (respondent No.2 herein) dated 02-11-2006 and alleged Document No.4 which is said to be a resolution passed by the Mandal Panchayath, Panchavalli, and dated 16-02-1989 are the documents which have no direct bearing upon the subject matter involved in the plaint. The letter of the Deputy Commissioner, Mysuru is with respect to the allotment of a portion of the property to an extent of 18 guntas for the construction of Nayaka Sangha Samudaya Bhavana. The alleged resolution alleged to have been passed by the Mandal Panchayath, Panchavalli on 16-02-1989 is also a resolution for the purpose of acquisition of land for formation of sites to the Muslim community in Abburu village in Sy.Nos.91, 92, 93, etc.

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At this stage, it can be believed that, both those documents would not have direct bearing either upon the alleged grant

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alleged to have been made by the Mandal Panchayat in favour of the plaintiff in the year 1972 or with the alleged issuance of Hakku Patra (Certificate of Right) in the year 1989. Thus, for the purpose of disposing of the present writ petition, which is confined to the correctness of the rejection of the relief of temporary injunction in favour of the plaintiff, suffice it to say that, except the alleged Hakku Patra (Certificate of Right) as Document No.1, the other documents would not be of much help to the plaintiff. Even the said Document No.1, i.e. the alleged Hakku Patra (Certificate of Right) also since prima facie proves to be a document not safe to be believed and acted upon, unless it is tested in a full-fledged trial, the Trial Court as well as the first appellate Court have not found out any prima facie case in the alleged possession of the suit schedule property by the plaintiff and thus the Trial Court has come to a conclusion of rejecting the I.A.No.1 filed by the plaintiff, under Order XXXIX, Rules 1 and 2 of the CPC and subsequently, the first appellate Court in the appeal

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confirming the said order of rejection, I do not find any circumstance warranting any interference in the said

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finding, which finding cannot be found fault with.

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Accordingly, the writ petition stands dismissed.

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Sd/JUDGE

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BMV*

Sri Zamrud Pasha v. Chief Secretary

Case brief

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What the court decided

Sri Zamrud Pasha v. Chief Secretary

Case brief

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